case between major film studios and an Australian ISP regarding internet piracy
has resulted in a dismissal in the Federal Court. However, despite this loss
for the film industry, the judgment provided clues as to how these studios can
improve copyright infringement notices sent to ISPs, thus encouraging internet
providers to take action against users participating
in unauthorized downloads.
industry claims that it has lost $1.37 billion to piracy over a year's time,
and that one in every three Australians has illegally downloaded movies from
the internet. The industry blamed Australian ISP iiNet, and made a
move by asking the Australian
Federation Against Copyright Theft (AFACT) to represent them publicly
and in a court case against the Internet provider.
the lawsuit began, AFACT used a firm called DtecNet to monitor iiNet users who
were allegedly downloading films from the Internet using the BitTorrent
protocol. AFACT then sent the IP addresses of those involved in Internet piracy
to iiNet along with copyright infringement notices. The letter's AFACT sent to
iiNet said that the internet provider could contact the users individually and
warn them against further copyright infringement, or sanctions could be imposed
on the user. AFACT did not specify what these sanctions would be, but according
to Troy Gurnett, senior associate at law firm Middletons who specializes in
intellectual property, AFACT may have ultimately wanted ISPs to terminate or
suspend user accounts if they did not comply. AFACT noted that they never stated,
"termination is reasonable or unreasonable."
response to the copyright infringement notices, iiNet believed it should not
have to accept "the responsibility of judge and jury in order to impose
arbitrary and disproportionate penalties purely on the allegations of
AFACT." AFACT then took iiNet to court.
week, the Federal Court dismissed the appeal case in a 2:1 ruling determining
that iiNet could not be held liable for its users acts of copyright
infringement. According to John Fairbairn, litigation lawyer and specialist in
intellectual property and technology law at Clayton Utz, iiNet was not
obligated to interfere with user activities. It was acting as an ISP should,
providing internet services, and did not have to go beyond those duties based
on AFACT's allegations.
ruling didn't end there. The judgment also provided clues as to how AFACT could
improve copyright infringement notices, which could lead to ISPs being held
responsible for user activity by sending warnings to users who participate in unauthorized downloads.
it stands, [the judgment] opens the way for copyright owners to improve the
quality of the notices they provide to ISPs and also potentially put in place a
regime where they'll agree to meet [the ISPs] costs [to act on the
notices]," said Fairbairn. "And if they meet those requirements, an
ISP may then come under an obligation to either send warning notices to those
users or to terminate the accounts of users that are repeat infringers."
judges were involved in the case, where lead judge Justice Arthur Emmett stated
that AFACT would need "unequivocal and cogent evidence of the infringement
and some form of undertaking to reimburse the ISP for the costs of taking those
steps and to indemnify it in the event termination of that user's account was unlawful.
assertion by an entity such as AFACT, with whatever particulars of the
assertion that may be provided, would not, of itself, constitute unequivocal
and cogent evidence of the doing of acts of infringement," said Justice
Arthur Emmett. "Information as to the way in which the material supporting
the allegations was derived, that was adequate to enable iiNet to verify the
accuracy of the allegations, may suffice. Verification on oath as to the
precise steps that were adopted in order to obtain or discern the relevant
information may suffice but may not be necessary."
ruling could lead to ISPs such as iiNet, Optus or Telstra being obligated to
warn Australian customers of copyright infringements performed on their
connection, and could possibly lead to termination of service as a
AFACT or anyone else puts forward a workable proposal, we are of course
prepared to examine it," said iiNet in a statement.
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